PIL in Delhi High Court on Govt departments using email accounts on foreign servers and minors using social networking sites

The Delhi High Court, in a PIL,  is examining, among other things, the aspect of breach, if any, of provisions of Information Technology Act and of rules framed thereunder by internet sites like facebook and google by allowing persons below 18 years to enter into an agreement with these sites. It was pointed out by these sites that if it comes in the knowledge of any person that a child below the age of 13 years has opened such an account,  he may make a complaint to the social networking site who then take appropriate action, after verification, for deletion of that account. In this regard, Information Technology (Intermediaries Guidelines) Rules, 2011 have been notified under the IT Act. Rule 3 requires due diligence to be observed by the intermediary. The social  networking sites such as Facebook and Orkut fall within the definition of “Intermediary” as per Rule 2(i) of the said Rules read with Section 2(1)(w) of the Information Technology Act, 2000. Therefore, the provisions of Rule 3 of the said Rules applies to them. It was informed that in accordance with Rule 3(1), both Facebook and Orkut have published the Rules and Regulations as also the privacy policy and user agreements for access and usage of their computer resource. Rule 3(2) contains certain other directions as to what should be the content of the Rules and Regulations, terms and conditions and the user agreements. Under Rule 3(4), the intermediary can take action for disabling any such information as mentioned in rule 3(2), both on a complaint in writing from affected persons as well as on obtaining knowledge by itself. By virtue of a subsequent clarificatory notification, it has been clarified that the intermediary shall respond to or acknowledge the complainant within thirty six hours and the same shall be redressed promptly but in any case within 30 days. 

The court vide its order dated 23rd August 2013 directed, after being pointed out Rule 3(11), that intermediaries, including the social networking sites such as Facebook and Orkut, should immediately publish the names of the respective Grievance Officers on their websites alongwith contact numbers as well as the mechanism by which any user or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3, can notify their complaints against such access or usage. This order was complied with by these websites, as recorded by the court in its order dated 23rd September 2013 and 30th October 2013.

The court in the said PIL is also looking into the issue of Government departments and officers using email accounts of service providers having servers located outside India and whether this violates provision of Public Records Act, 1993. It was informed to the court by the Government of India that the Government is on the verge of finalizing an E-mail Policy and Govt would ensure that there is complete conformity between E-mail Policy and the said Act with regard to public records.

The PIL will now come up on 26th September 2014. It was filed by shri K.N.Govindacharya and its case no. is Writ Petition (civil) No.3672/2012.

Complaint under Section 138 NI Act for cheque dishonor can be filed only at place where the account from which the cheque is issued and dishonored is located

In a landmark decision which is going to have very wide ramifications in the cheque dishonor cases throughout India, a 3-Judge Bench of the Hon'ble Supreme Court of India on 1st August 2014 in the case titled as 'Dashrath Rupsingh Rathod vs State of Maharashtra' held that a complaint case under Section 138 of Negotiable Instruments Act for dishonor of cheque can be filed only in the court at the place where the bank branch in which the accused has his account and from which account the cheque was issued and dishonored, is located. This is departure from the earlier judicial dispensation whereunder the complainant could file case at any of the several places like the place where the cheque was deposited by the complainant. The latest judgment on territorial jurisidiction of criminal court in a case under Section 138 has taken into account the harassment faced by the people who are impleaded as accused in complaint cases filed under Section 138 at places far away from the accused's place. The court also took note of the fact that Section 138 of the NI Act is being rampantly misused so far as territorial jurisdiction for trial of the complaint is concerned.

The Court further clarified that all pending complaint cases under Section 138 where the case is still at early stage and recording of evidence under Section 145(2) of the NI Act after appearance of accused has not yet started, will be returned by the concerned magistrate's courts for the complainant to file the same in proper court within 30 days from the date of return of complaint. 

This judgment is going to affect lakhs of cases and is likely to set a milestone in criminal jurisprudence as far as the law relating to cheque dishonor is concerned. 

Read the Full Judgment.

Patients have right to take their medical records under RTI from Hospitals, rules CIC

The Central Information Commission (CIC) in a far reaching judgment, delivered a detailed judgment on 24^th July 2014 holding that a person has right to take copy of his or her medical records from the hospital., whether Govt or private hospitals, under RTI Act. The Commission referred to various judgments and constitutional provisions as also medical ethics in support of its judgment.

This judgment was delivered in the case of Ms. Nisha Priya Bhatia vs Institute of Human Behaviour & Allied Sciences, Govt of NCT of Delhi on 24^th July 2014.

Read the Full Judgment. 

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court issues notice to Election Commission on a PIL seeking direction for display of photographs of contesting candidates on EVMs

The Supreme Court of India has entertained a PIL which has sought directions to the Election Commission of India to display photographs of candidates on the EVMs to curb the practice of dummy candidates with same or similar names. The PIL raised the issue that quite often dummy candidates with same / similar names are set up by vested interests to confuse the voters which many a times alter the election result. This menace can be curbed if the photographs of the contesting candidates are displayed on the Electronic Voting Machines (EVMs) so that voters can meaningfully and properly exercise their right to vote and to ensure that their vote has gone to the candidate of their choice.

The Supreme Court’s bench of Chief Justice R.M.Lodha, justice Kurian Joseph and Justice RF Nariman, on 25^th July 2014, issued notice to the Election Commission of India returnable in ten weeks. The case is “Akash Gahlot vs Election Commission of India” Writ Petition (Civil) No.541/2014.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court allows Sahara group chief Subrata Roy and other officers to use conference room facilities at Tihar Jail for limited period

By an order passed on 1^st August 2014, the Supreme Court allowed Sahara group chief Subrata Roy and other officers lodged in Tihar Jail to use the conference room of Jail No.3 at Tihar Jail Delhi for 10 days starting 5^th August and also allowed them to use the facilities of video conferencing, internet/wifi, secretarial staff, laptop, mobile and landline with STD/ISD facility to negotiate with prospective buyers of hotel properties of Sahara to comply with Supreme Court’s order of deposit of Rs.5000 crore in cash (out of which Rs.3000 crore stands deposited by Sahara group). It may be recalled that by its order dated 26^th March 2014, the Supreme Court had granted interim bail to Subrata Roy and other officers subject to the Sahara group depositing Rs.5000 crore in cash and Rs.5000 crore by way of Bank Guarantee from a nationalised bank in favour of SEBI.

Read the Full Order. 

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court : High Court under Section 482 CrPC can compound the non-compoundable offences of personal nature but offences which involve moral turpitude, grave offences like rape, murder etc. cannot be compounded and can not be quashed on compromise by the parties

Yogendra Yadav vs State of Jharkhand (Criminal Appeal No.1205/2014)

Section 320 of Code of Criminal Procedure prescribe which offences can be compromised (called “compounding of offences” in legal language) by the parties themselves and which offences can be compromised by them with the permission of the court. The remaining offences which do not find mention in Section 320 CrPC can not be compromised even with the permission of the Court.

The facts of the case in brief are that complainant got registered an FIR under Sections 341, 323, 324, 504 and 307 read with Section 34 of the Indian Penal Code (IPC) alleging that appellants assaulted him and his men. On the same day, appellants also got registered an FIR under Sections 147, 148, 149, 448, 341, 323 and 380 of the IPC regarding the same incident alleging that complainant and his men assaulted them. In both the cases, after investigation, charge-sheet was submitted.

While the cases were going on before trial court, both the parties agreed to compromise the cases. A Panchayat was held where with the intervention of the well-wishers a compromise was arrived at. A compromise petition dated 16/11/2011 was signed by both the parties and it was filed in the trial Court. The trial court observed that offences under Sections 324, 341, 323 of the IPC are compoundable with the permission of the court and hence said offences were compounded and the accused were acquitted of the same. However, the trial court observed that offences under Sections 326, 307 read with Section 34 of the IPC are non-compoundable and hence directed that the case should proceed against the accused for offences under Sections 326, 307 read with Section 34 of the IPC.

This order was challenged by the appellants in the High Court of Jharkhand but the High court dismissed the challenge. The appellants then moved the Supreme Court.

The Supreme Court by its judgment on 21^st July 2014 allowed the appeal and set aside the trial court’s and High court’s order and compounded the non-compoundable offences and quashed the proceedings. The Supreme Court relied on its earlier judgment in the case of Gian Singh vs State of Punjab (2012) 10 SCC 303 (wherein the Supreme Court had held that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor). The Supreme Court held that in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.

Though State of Jharkhand filed an affidavit opposing the compromise, but the Supreme Court quashed  the proceedings in view of the compromise and in view of the legal position.

Manohar singh vs State of Madhya Pradesh (Criminal Appeal No.1498/2014)

In another matter on same day, the Supreme court held that where the parties enter into a compromise after the conviction has been recorded after trial, the non-compoundable offences can not be compounded. However, in such a situation if the court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone (relying on Supreme Court’s earlier decision in Narinder Singh vs State of Punjab JT 2014 (4) SC 573). In this case, the offence involved was Section 498-A IPC and Section 4 Dowry Prohibition Act. Appellant was convicted under both and was sentenced. His appeal was rejected by the High Court. During his appeal in Supreme Court, he made a statement that he was willing to give monetary compensation to his wife in lieu of substantive sentence of imprisonment. His wife appeared and stated that if the appellant pays her Rs.2,50,000/- as compensation, she is ready to settle the matter. The appellant brought the demand draft of said amount.  The counsel for both parties requested the Court to show leniency in view of the settlement, however counsel for State opposed the prayer. The Supreme court, while maintaining the conviction, reduced the sentence to the sentence already undergone by the husband subject to his paying Rs.2.50 lakh to the wife, in the interest of peace and amity.

Sathiyamoorthy vs State (Criminal Appeal No. 1169/2014)

In yet another case on the same day, in respect of the offences under Sections 148 and 149 of the IPC (rioting, armed with deadly weapon), the supreme Court reduced the sentence to the sentence already undergone, in view of compromise between the accused and the victim.

Read the full judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court comes to the rescue of person against whom false case of cheque dishonor was filed

Ramdass vs  Krishnanand   Criminal Appeal No.1522/2014

Facts of the case are that the cheque of Rs.5 lakh issued by the appellant Ramdass in favour of respondent was dishonored as the appellant instructed the bank to stop the payment. The respondent filed criminal case under Section 138 of Negotiable Instruments Act against the appellant. The complainant/respondent set up the case that he had given hand loan of Rs.1.75 lakh to the appellant and that to discharge said liability, the appellant had issued the cheque of Rs.5 lakh.  The case of the appellant, on the other hand, was that he had entered into an agreement with the complainant to purchase 3 acres of land belonging to the complainant for a total consideration of Rs.10,00,000/- and for that purpose, an advance of Rs.30,000/- in cash was paid and the Cheque in question for Rs.5,00,000/- was handed over to the complainant in presence of B.S. Pai (DW 2) and that when the complainant failed to execute the sale agreement and not even willing to return the advance amount of Rs.30,000/- and the Cheque of Rs.5,00,000/-, he had to instruct the Bank to stop payment against the said Cheque.

The Magistrate Court took note of the financial condition of the complainant and found his version to be false on the evidence led before him and dismissed the complaint and acquitted the appellant of the offence.

The complainant filed appeal in the High Court. The High Court while allowing the appeal, set aside the judgment of the Trial Court and sentenced the appellant-accused to pay a fine of Rs.8,50,000/- within a period of eight weeks, failing which, to suffer simple imprisonment for a period of six months.

Aggrieved by the reversal of his acquittal, the appellant appealed to Supreme Court of India. The appellant deposited Rs.1,75,000/- in the trial court in accordance with the Supreme court’s order initially. However, vide final judgment dated 23^rd July 2014, the Supreme Court allowed the appeal and set aside the  judgment of High court and restored the judgment of trial court acquitting the appellant. The Court observed that it can not be believed that the complainant had raised loan of Rs.1,75,000/- only to give hand loan to his employer/appellant. The court observed that it is not trustworthy that complainant was in a position to extend hand loan of such a big amount to the appellant particularly when the complainant himself admitted that his net savings in a year came to Rs.10,000/- per year and he was working as lorry driver with appellant who used to deal in sale purchase of properties. The supreme court permitted appellant to withdraw Rs.1,75,000/- which were earlier deposited by the appellant in the trial court in pursuance to Supreme Court’s initial order.

Read the full Judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm